Nonmandatory subject of collective bargaining

Nonmandatory subject of collective bargaining

Matter of Village of Buchanan, 29 PERB 3061

One of the items submitted to compulsory interest arbitration by the Buchanan Police Association concerned a demand involving the "minimum time period a floater will work." The demand required a floater to be called in only for full [four day] tours of duty.

PERB affirmed the administrative law judges ruling that this was a nonmandatory subject of collective bargaining as it "interfered with the Village's right to determine the number of police officers on duty at a given time."

Alleging misconduct by an arbitrator

Alleging misconduct by an arbitrator

Security Unit Employees v New York State Correctional Services, 36 AD2d 546

When must a party raise the issue of misconduct by an arbitrator as justification for vacating an arbitration award? If a party waits until the matter is before an appellate body before first raising the question, its apparently too late.

As the Court commented in the Security Unit Employees case, if a party wishes to vacate an arbitrator's award on the ground of misconduct by the arbitrator, the allegation may not be initially raised in the course of an appeal.

The Appellate Division refused to listen to such an allegation in the course of its consideration of the union's appeal seeking to vacate an arbitration award on the grounds of misconduct by the arbitrator.

The union also claimed that the arbitrator failed to issue the arbitration decision within "the contractual time limitation" for issuing awards.

The Appellate Division said that the "short delay" in issuing the award did not prejudice the union and declined to set aside the award for that reason.

Improper practice determinations

Improper practice determinations

Selected determinations by the Public Employment Relations Board

Summarized below are selected rulings by PERB administrative law judges concerning improper practice charges:

1. BREACH OF CONTRACT: Allegations that an employee organization has refused to schedule disciplinary hearings in accordance with the time limits set out in the collective bargaining agreement did not constitute an improper practice within the meaning of the Taylor Law. PERB does not have jurisdiction to resolve alleged breaches or violations of the terms of a collective bargaining agreement. PERB does have jurisdiction, however, where it is shown that the "at-issue contractual provision has been totally abandoned." [Matter of the Westchester County Correction Officers Benevolent Association, 30 PERB 4502; Monte Klein, Director of Employment Practices and Representation]

2. BARGAINING UNIT WORK: A school district did not commit an improper practice by unilaterally entering into an agreement with a BOCES which resulted in BOCES supplying a remedial mathematics teacher notwithstanding the fact that teaching remedial mathematics was "exclusive bargaining unit work." Citing Webster Central School District v PERB, 75 NY2d 619, PERB's administrative law judge held that "the decision of a school board to contract for a BOCES instructional program" is not a mandatory subject of collective bargaining. [Matter of Odessa-Montour Central School District, 30 PERB 4505; Administrative Law Judge J. Albert Barsamian]

3. INTEREST ARBITRATION: A party may not convert a nonmandatory subject of collective bargaining under the Taylor into a mandatory subject of negotiations by submitting it to compulsory interest arbitration. It was an improper practice for the employer submit its contract  demands seeking to eliminate contract provisions concerning minimum staffing and call-back pay to compulsory interest arbitration. Matter of Glens Falls Firefighters Union, 30 PERB 4506, Kenneth J. Toomey, Assistant Director of Public Employment Practices and Representation.

4. TRANSFER OF SERVICES: It was an improper practice for a school district to unilaterally transfer its printing services then being exclusively performed by bargaining unit employees to a BOCES. Although the unilateral transfers of services to a BOCES is permitted, such transfers are limited to educational services and "services closely related thereto." PERB's administrative law judge ruled that the Webster ruling [75 NY2d 619 and §1950 of the Education Law cannot be read to encompass printing functions as "educational services and services closely related thereto ... by whatever name." Matter of Vestal Employee Association, NEA/NY, 30 PERB 4515, Administrative Law Judge J. Albert Barsamian.

5. EXPIRATION OF AGREEMENT: The employer violated the Taylor Law by refusing to continue paying the uniform allowance contained  in the parties expired collective bargaining agreement. Inclusion of the term "of each year of the agreement" did not serve to limit the payment of the benefit only for the life of the agreement absent a "sunset provision" demonstrating that the parties intended to limit payment of the benefit to the life of the agreement. [Matter of the Division of State Police, 30 PERB 4515, Administrative Law Judge Susan A. Comenzo]

Cofsky v Sinnott

Freedom of information

McCray v Lennon, NYS Supreme Court

Louis McCray, currently serving twenty years to life at Green Haven Correctional Facility, filed a Freedom of Information [FOIL] request seeking agency records that would identify the employment status, titles, and date of termination of a certain employee of a police department. When the Department refused to provide the information on the grounds that McCray had not properly identify the information he was seeking, McCray sued.

Citing Bahlman v Brier, 119 Misc2d 110, the Court ruled that the disclosure of such employee information would be an invasion of privacy within the meaning of §87.2 of the Public Officers Law and dismissed McCray complaint.

The Court said that there was a need to balance the public's right to know with the right of innocent individuals to be protected from unwarranted intrusions in their personal lives. Accordingly, the Court concluded, the Department's refusal to release information demanded, even if the request had been properly made, was appropriate because of the nature of the requested information.

Fire marshals and police officers

Fire marshals and police officers

Rossi v NYCMTA, NYS Supreme Court

Are New York City fire marshals police officers? The answer to this question proved to be the key to resolving Rossi v the New York City Municipal Transit Authority [NYCMTA]. City fire marshals Thomas Rossi and Gregory A. Papa complained that NYCMTA failed to include fire marshals in its police ride program as required by §1266(14) of the Public Authorities Law.

§1266.14 requires NYCMTA, in consultation with the Long Island Rail Road, to "establish and implement a "no fare program" on the Long Island Rail Road for police officers employed by the City of New York, the County of Nassau, Nassau County villages, the Division of State Police and a number of other public employers. The goal of the program was to increase protection and improve safety for its commuters by encouraging a "police presence" on commuter trains.

Claiming fire marshals have police officer status, Papa challenged the rejection of his application for a monthly transit pass under the program, citing as authority for his position Criminal Procedure Law, §1.20[34](i) and the Administrative Code of the City of New York §15-117. Two law suits were filed, one by Rossi and a second by Papa, when NYCMTA's refused to include the City's 238 fire marshals in the program. The two were later consolidated into a single action.

In defending its decision, NYCMTA argued  that the program was only available "to active members in good standing of the police departments specifically referenced in the [§1266(14) of the Public Authorities Law] ... [and] does not apply to individuals not ordinarily thought of as police officers, such as fire marshals, district attorney investigators and enforcement agents of the State's Department of Taxation and Finance."

The Court, disagreed, ruling that NYCMTA's implementation of the police pass program constituted an irrational construction of the §1266(14).

Noting that the fire marshals carried firearms and had the same power of arrest as members of the New York City Police Department, the Court directed NYCMTA to include all police officers employed by the City of New York, the chief and deputy fire marshals, the supervising fire marshal and the fire marshals of the bureau of fire investigation in the program.

The Court also commented that "[a]ll police officers in the State of New York derive their official status from the provisions of §1.20(34) of the Criminal Procedure Law."